I've been sitting here listening to a lot of discussion about aboriginal consultation. Let me make one thing clear. With respect, I don't know of any federal legislative requirements that fulfill the duty to consult—I understand it's done on a policy basis. I'm not quite sure what that policy is.

The second point I want to make is that when we talk about consultation in this room, I've heard about the Red Chris case and the Moses case, and AFN raised the Haida and Taku cases as well. These are all Supreme Court of Canada cases that directly impact the specific projects. I would suggest to you that by not actually having anything within the legislative framework, and by not having first nations involved in the policy development framework, everything is being kicked out to litigation. That's really bad for first nations, obviously, and we've heard that it's bad for industry.

With respect to the Matawa case, that's a scoping issue, just like the Red Chris case was. As I understand, it is now in the courts, and I see that as a failure. I understand they wanted a review panel. I don't know what kinds of discussions or what kind of feed-in they had to the decision to do a comprehensive study. I don't know if they were making reasonable suggestions or not; I assume they were. The point of the matter now is any kind of discussion on that situation is moot until it runs through a court process. This is another one that could well end up in the Supreme Court of Canada. I don't think that's really good for anybody.

I completely agree with what Mr. David said; that's probably the crux of the answer.

What I would like to add is perhaps pursuant to what Mr. David had mentioned, with regard to the different levels within the CEA Act of what is consultation. Consultation is a loaded word in the CEA Act—there's a specific definition; there's involvement; there's informing; there are different levels, which are discretionary for the responsible authority, depending on the nature of the project and the nature of the environmental assessment. As was mentioned, it's very important to be talking about the same thing—apples and apples, oranges and oranges. So, for instance, definitions for consultation within the CEA Act are defined within the act itself, but within a different jurisdiction—our own in James Bay territory—it means something else.

The duty to consult would theoretically have to be defined case by case, jurisdiction by jurisdiction in terms of what that means in situ. Do we need to do that? Do we need to go there? Gosh, that's most definitely a work in progress for the JBACE. We actually have a subcommittee working on that right now.

Then I'd ask if you could follow up with me in writing. As I pointed out, this is the first time we've actually heard first nations voices—representatives from first nations. If you could, give us advice about what we should be doing to further consult, with who and how—and this is just the legislative review—and maybe on specific issues as well. Maybe we need to do an actual deep look at legislating the duty to consult and embedding it in legislation. If you could follow up with us in writing, that would be fantastic.

Again, I thank the witnesses for being with us today. It's an extremely important issue. I will start with our friends from the AFN who are with us today. I note you opened with greetings from the national chief on our recent democratic exercise and congratulated us on getting elected. We appreciate that. I want to acknowledge his greetings.

The national chief, Shawn A-in-chut Atleo, is from Ahousaht, and Ahousaht is part of the area I represent. So I am in his traditional territory, at least part of my riding is, and we have been working together.

You mentioned reconciliation. One of the elder advisers is also from our area. Chief Barney Williams, a neighbour of mine, works very closely on the reconciliation issues.

For our friends from the Cree James Bay, we want to acknowledge the leadership of your community. In 1975 there was a very significant modern accomplishment in coming to an agreement, and the names of your former Grand Chief Matthew Coon Come and former Deputy Grand Chief Kenny Blacksmith are well known in our circles here for their dialogue and contributions to overcoming some significant challenges. Now, having said that, we're glad you're here together because we are looking for a way forward.

Mr. Collyer, in your written remarks you said:

We also want to emphasize that without concurrent process improvements related to Aboriginal consultation, we will not fully realize the benefits of improvements in the regulatory process.

We recognize that it's working better in some situations than others and there's something that needs to be fixed here. That's what the objective of our discussions is today.

For the CAPP, you employ some 500,000 people and represent 3.5% of our GDP. That's a huge contribution to Canada's GDP. Most of your operations are not in urban areas; they're out in rural areas. There are first nations communities there, which not only creates issues about consultation but it creates opportunities for economic development, partnerships, and employment of first nations.

Certainly that would be true of our mining community as well, where I think you have about 350,000 Canadians employed, and many of them would be first nations.

First of all, can you tell me or do you have any idea what percentage of your employed persons in the petroleum industry might be first nations, and the same for the mining association, if you could quickly remark on that? Do you have any idea?

According to Statistics Canada, we're the largest private sector employer of aboriginal people in the country and we're about twice the national average in terms of employing aboriginal people. I would then emphasize, though, that there is a lot more potential, and as we face the human resources challenge I mentioned earlier, increasing the participation of aboriginal Canadians in our industry is one of our primary objectives.

I know that on the coast economic development for first nations is a priority. We've seen some great things move ahead. Recently I had a ribbon cutting for a micro-hydro project, where the Toquaht are participating. We were at that ribbon cutting and I remember remarking that the sound of that turbine moving behind us was the sound of a revenue stream for that first nation.

Another one of our first nations, the Hupacasath, has an agreement with a mining company for gravel extraction, which is moving ahead. That's a very positive development.

We want to create economic capacity for our first nations. It seems that's a great way to make a whole new suite of opportunities for the future.

We recognize that even though there are many other opportunities there, we have to work our way through this consultative process. I want to ask the Cree James Bay folks, since you've been at this for a while, whether you are aware of developments in your community in mining and so on that have worked out successfully. And are some of your people employed?

First of all, I'd like to clarify that I am a Cree, but I'm part of the James Bay Advisory Committee on the Environment. Within this committee there are federal members, provincial members, but yes, it is for the interests of the Cree. I myself do work for the Grand Council of the Crees, so I'll speak on behalf of the development happening in my territory.

A few years ago, the Premier of Quebec announced the Plan Nord, and this has seen the development of 50% of our territory above the 49th parallel, all the way up to Nunavut. With this there was also 50% protection. This is still in the planning phase.

Also, with the increase of gold there has been more mining activity in our territory. This has led us to be more proactive in terms of building a relationship with these mining companies. We have also developed a Cree mining policy within the Cree Regional Authority, so on behalf of the advisory committee we are working on seeing that there is a relationship within the companies, but also in terms of public participation.

My questions are going to be directed to Mr. David and Mr. Jones from the Assembly of First Nations.

Thank you very much for being here with us and for your testimony and recommendations.

I'm interested in speaking with you because my riding includes Oka. It's traditionally Kanesatake Mohawk territory. The people of Kanesatake have never been consulted, let alone given their consent to mining projects that keep trying to come into the territory. This is traditionally their territory, and it's currently under review, so there is a lot of concern about the fact that there have been no consultations--or not with them anyhow. There has been a little bit of consultation with the people living in Oka, but not with the people of Kanesatake.

The people of Kanesatake believe there should be free, prior, and informed consent. If they draw on the UN declaration of indigenous rights, to which Canada is a signatory...they're trying to make this argument. I'd like to hear from you. Could you elaborate on the importance of consent and the difference between consent and consultation?

As Mr. David pointed out earlier, I think that's perhaps the $64,000 question--or maybe it's now the $64 billion question. This is something that is extremely important in terms of being able to work at.... I think one of the things to take from the United Nations Declaration on the Rights of Indigenous Peoples is that these are standards that we want to achieve together with states--in our case, with Canada.

I think what has failed to happen in this country, as Mr. David pointed out, is that when courts--or situations like the UN declaration--set out requirements as to what the engagement relationship ought to be between the state and the peoples, we're not working together to try to define what that is. Often what we see is unilateral policy or guideline development. That's not going to work, since it obviously hasn't had the benefit of the input of the indigenous peoples involved.

I don't think there is any particular magic formula around what it means. I think it's a process. I think it's a process that requires the relationship to develop and to evolve, which will enable people to then be in a position to create agreements and to create partnerships. In essence, that's really what consent is: it's how you get the parties to be mutually satisfied about the outcome that is desired.